On May 14, 2020, the Massachusetts Department of Family and Medical Leave released proposed amendments to the regulations for the Paid Family and Medical Leave (PFML) Law.
The Department posted the amendments on its website and held a virtual hearing on June 11, 2020 to receive public comments. Written comments were also accepted for a 24-hour period following the virtual hearing. Given that the benefits provided by the PFML are available to employees beginning in only seven months’ time and that the Department previously issued “final” regulations in July 2019, it is notable that these regulations remain in flux.
The proposed amendments modify and expand upon definitions contained in the PFML. While some definitions seek to clarify previously vague terms, such as “active duty” and “good cause,” others alter the substance and procedures associated with the PFML.
Perhaps the most significant proposed clarification to the definitions is that an employer’s workforce would not include self-employed individuals or covered contract workers (those filing IRS Form 1099-MISC). The proposals define covered contract workers as persons who (a) perform services as an individual entity in Massachusetts, (b) reside in Massachusetts, and (c) are not classified as an independent contractor pursuant to the unemployment statute (M.G.L. c. 151A, § 2).
Private Plan Exemptions
The proposed regulations also seek to clarify issues concerning private plan exemptions. Specifically, they provide that private plan coverage must be provided to all “[a]ll employees and covered contract workers and former employees” in order to seek exemption. They also list a number of requirements for a private plan to obtain approval by the Department, including that an employer must inform covered individuals of their rights under the private plan as well as their rights under PFML, along with an appeals process. This allows employees to appeal before the private plan provider within ten calendar days (or more if the employee can provide sufficient reason for the delay). The employee can appeal before the Department after exhausting the private plan provider’s appeal process.
Under the proposed regulations, if an exemption is approved by the Department, an employer may be exempt from the requirement to make contributions for medical leave coverage, family leave coverage, or both. The exemption will be effective for up to one year and may be renewed annually upon subsequent approval.
Applying for PFML
The proposed amendments also seek to clarify the process individuals must follow when applying for PFML benefits. Covered individuals may file an application with the Department no more than 60 days before the anticipated start of family or medical leave.
Individuals must provide the following information to the Department:
- Proof that the employer has been notified of the intended leave
- Full name of the covered individual
- Anticipated start date of the leave
- Anticipated length of the leave
- Type of leave, and
- Expected return date.
The notification to the employer must occur at least 30 days before the anticipated start of family or medical leave. If the individual cannot provide at least 30 days’ notice, the individual must provide notice “as soon as practicable.”
The proposed amended regulations calculate benefits based on an individual’s weekly wages at the time of the application. Benefits will be reduced by any amount received through an approved private plan or any other wages received during the duration of the leave. Additionally, weekly benefits may be reduced if the covered individual has outstanding tax or child support obligations – a modification deemed to be a “punitive garnishment” by a commenter during the hearing.
Job Protection and Consequences
The proposed amended regulations are also intended to take the sting out of the presumption of retaliation for negative employment actions taken in the six-month period following an individual’s PFML leave. The revised regulations clarify that a negative change does not include “trivial or subjectively perceived inconveniences.” In addition, it will not be considered retaliation if the employer informs the Department of its bona fide belief that the individual has committed fraud in applying for PFML benefits. The proposed regulations retain language from previous incarnations that provides that the presumption of retaliation will be rebutted only by “clear and convincing evidence” that the employment action was not retaliatory.
Comments at the June 11, 2020 Public Hearing
The public hearing included overwhelming criticism towards measuring intermittent leave in 15-minute increments, highlighting the administrative complications of doing so. Additionally, there was feedback regarding the requirement of social security number(s) in the application process due to its immigration implications. Commenters also pointed out the exclusion of contract workers, along with inconsistencies between definitions in the PMFL and other Massachusetts legislation.
Presumably, the Department is considering comments made at the public hearing and those submitted in writing, though it is not clear at this time whether further revisions are forthcoming. We will continue to provide updates as the PFML continues to evolve.
Thank you to Puneet Dhaliwal for her contributions to this article, which were significant.
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